IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. Chitambaresh, Sathish Ninan, JJ.
Jose Philip – Appellant
Versus
The Thodupuzha Taluk Co-Operative Rubber Marketing Society No. E.222 and Ors. – Respondents
W.A.No.705 of 2016
Decided On : 04-07-2018
Chitambaresh, J.
1. The appellant while working as the Factory Manager of Co-rubber Crumb Factory run by the first respondent society was dismissed from service with effect from 27.2.1991 for 'self abandonment of job'. Ext.P6 order dated 10.6.1991 was issued to that effect by the President of the society based on Ext.P5 resolution dated 4.6.1991 of the managing committee of the society. Ext.P7 appeal dated 10.7.1991 of the appellant to the Board of Directors was dismissed by Ext.P8 order dated 16.10.1991 indicating that there was a charge of misappropriation as well. The appellant followed it up by filing O.P.No.12825/1991 on the file of this Court which was disposed of by Ext.P9 judgment dated 21.5.2003 and Ext.P10 order dated 17.12.2003 on review. The appellant was directed thereunder to move the Joint Registrar of Co-operative Societies to have the resolution of the managing committee rescinded. The motion made by the appellant was pending before the Joint Registrar pursuant to a remand by the Government when the proceedings were transferred to the Co-operative Arbitration Court. It was so done pursuant to Ext.P12 judgment dated 18.3.2008 in W.P(C).No.9219/2008 filed by the appellant in view of the constitution of the Co-operative Arbitration Court.
2. The Co-operative Arbitration Court by Ext.P14 award dated 7.8.2012 in A.R.C.No.117/2008 non-suited the appellant on the ground that he has abandoned his job and there is no ground to interfere in the order of dismissal. It was interalia held as follows:
“The observance of the procedure like framing of charge, conduct of enquiry, formation of subcommittee are not necessary in the facts and circumstances of this case. This is a clear case of abandonment by the plaintiff himself and the plaintiff is miserably failed to prove to the contrary.”
The Kerala Co-operative Tribunal by Ext.P15 judgment dated 31.8.2013 in Appeal No.88/2012 set aside the order of dismissal of the appellant and directed the disbursement of all service benefits from 27.2.1991. It was inter alia held therein as follows:
“When serious allegations as stated above are raised against an employee, the employer can pass order of dismissal only after following the procedure established by law i.e. defendant society had to be complied with rule under 198 of Kerala Co-operative Societies Rules. In the instant case, the defendant society has admitted that it had not framed any charge against the plaintiff, not conducted a domestic enquiry into the above said serious allegations levelled against the plaintiff and had not constituted a Disciplinary Sub Committee. Without following the above said legal procedures, the defendant is seen to have passed only a resolution dismissing the plaintiff from the service.”
Thus both the authorities have concurrently found that the procedure contemplated under Rule 198 of the Kerala Cooperative Societies Rules, 1969 ['the Rules' for short] was not complied with preceding the order of dismissal.
3. The learned single Judge by the impugned judgment dated 1.3.2016 allowed W.P(C).No.31764/2013 filed by the society setting aside Ext.P15 judgment of the Tribunal and restoring Ext.P14 award of the Arbitration Court. The learned single Judge in so doing observed as follows:
“27. Rule 198 of the Rules, of course indicates that the Managing Committee can conduct an enquiry into the matter. But in a case of a person abandoning service without any valid explanation, the law laid down by the Supreme Court in the cases referred above, especially the judgment in Viveka Nand Sethi's case (supra) is authority enough to indicate that a limited enquiry as to whether the employee concerned has sufficient explanation for not reporting for duty, after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance with the requirements of principles of natural justice.”
The appellant challenges the judgment aforesaid contending interalia that the disciplina
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